The United States has filed a new Statement of Interest. The tone is balanced, but the conclusion is clear: the Department of Justice thinks the settlement is beyond the court’s authority and still problematic on antitrust grounds. It’s a careful, detailed brief, that raises fundamental objections to the settlement. These issues will not be resolved with quick patches, even if the parties were in the mood to revise and resubmit a second time.

This is my last post to the Laboratorium, thank you James. I figure the United States is going to do whatever it wants, regardless of who’s rights they trample in the process.
Douglas Fevens,
Halifax, Nova Scotia
The University of Wisconsin, Google, & Me

Well, Douglas, the Canadian government has not been standing up for its authors regarding the Settlement as far as I know. They could have filed a brief with the court.

Although I am heartened by the Justice Department’s assertion that the “problem” of so-called orphan works is one to be settled by Congress, not Google, their assertion that any work not currently in print should be up for grabs by everyone “for the good of the public” is far from heartening.

In the 1980s and early 1990s, I wrote a number of articles for antiques magazines, sewing magazines, needlework magazines, and other magazines. I did not sell e-rights to any of them: E-rights did not exist yet. All I sold was first serial rights or second (reprint rights)/a one-time use of an already published article. (Except for selling all rights to my first article, published in a science fiction magazine in the early 1980s. In some detail, I quite accurately predicted wireless computing, the Espresso book machine, and digital paper like that recently prototyped by Hewlett-Packard and others. Pity I never took out any patents.) One of the magazines did go out of business and sell e-rights to all my articles to a database; I had the database do a takedown.

I still have all the contracts in my files and can check them over again just to make sure, but I think I’m in the clear, as I was always very careful about not transferring any more rights than I had to transfer.

I don’t want these articles exploited by others merely because they are now out of print. Especially since some of them contain big hunks of material I later put into my first book. I’m going to put out a third edition of that, so it will not go out of print and get grabbed by anyone “for the good of the public.” I don’t want free or very cheap articles competing with it.

So what I am thinking of doing is assembling an anthology, printing 100 copies POD, and making sure it gets listed on industry databases. I don’t expect to actually sell many copies.

Having very quickly scanned the Statement of Interest document, the Justice Department seems to be saying that the settlement is outside the scope of the original litigation and that the original litigation concerned fair use, not money or sale of rights. The change into a settlement about remuneration has placed it outside the bounds of what is possible. Am I on the right track? Is this your understanding?